Lukens v. State

400 N.W.2d 794
CourtCourt of Appeals of Minnesota
DecidedApril 17, 1987
DocketCX-86-1377
StatusPublished
Cited by1 cases

This text of 400 N.W.2d 794 (Lukens v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lukens v. State, 400 N.W.2d 794 (Mich. Ct. App. 1987).

Opinion

*796 OPINION

HUSPENI, Judge.

A jury found respondent, Alan Lukens, guilty of fourth degree intrafamilial sexual abuse, and Lukens petitioned for postcon-viction relief. A postconviction court granted Lukens’ petition and ordered a new trial. On appeal, the State argues that the postconviction court erred when it granted a new trial because: the trial court properly excluded character evidence; Lukens was not denied effective assistance of counsel; and the prosecutor’s misconduct in his closing argument did not constitute reversible error. We reverse and remand for reinstatement of conviction.

FACTS

Alan Lukens was charged with fourth degree criminal sexual conduct under Minn. Stat. § 609.3644, subd. l(2)(e) (1984) (repealed 1985) for alleged acts against his step-daughter A.V. At trial A.V. stated that Lukens had tried to kiss her and touch her breasts, legs and genital area. She said that she told a friend about the abuse but was afraid to tell her mother. Eventually A.V. recounted these incidents to a social worker and a police officer. A.V.’s sister testified that Lukens had made repeated sexual advances towards her while she was living at home.

The police officer who interviewed Luk-ens testified that Lukens admitted pinching A.V.’s breasts and buttocks but Lukens did not think that he had tried “french kissing” and that he had never intentionally touched A.V. in the genital area, but his hand may have slipped.

The only witness to testify for the defense was Lukens himself. He denied any sexual touching of A.V. but said he may have unintentionally touched her when they were involved in “horseplay.” At one point Lukens admitted touching A.V.'s breasts but denied fondling them. Lukens testified that he and A.V. had ongoing conflicts and that these allegations of sexual abuse were A.V.’s way of getting him out of the house.

At trial, defense counsel had stated in his opening statement that “another factor is the relative truthfulness of the ■witnesses” and that the defense would offer the testimony of three or four witnesses as to Luk-ens’ trustworthy character. When the opening statements had concluded, the trial judge conferred with the attorneys in chambers and informed defense counsel that the State had not raised the issue of Lukens’ truthfulness and therefore the defense would not be allowed to introduce the character evidence under Minn.R.Evid. 608. The trial court did not rule whether the evidence would be admissible for other evi-dentiary purposes, but defense counsel made no further attempt to admit the evidence. The jury was then informed that these witnesses would not be testifying about Lukens’ honesty.

A.V.’s personal diary was admitted into evidence. Lukens said that he found the diary when he was looking for a phone book and took the diary to help with his defense. At trial defense counsel attempted to use the diary to impeach A.V., but was unable to locate the passages he intended to use and therefore did not use the diary.

Lukens retained new counsel to represent him on his petition for postconviction relief. The postconviction hearing was conducted by a judge other than the one presiding at trial. The attorney who represented Lukens at trial testified that he had tried between five and ten sexual abuse cases before representing Lukens. The attorney also identified the billing statement that he had submitted to Lukens.

At the postconviction hearing, three individuals who had known Lukens for several years testified that they believed Lukens to be of good moral character. One of the witnesses stated that she believed people of good moral character do not abuse their children. The other two witnesses would not speculate on whether someone with a reputation for good moral character would ever sexually abuse a child.

The final witness at the postconviction hearing was an attorney, Earl Gray, who *797 had represented ten to fifteen individuals accused of sexual abuse. Gray pointed out several aspects of Lukens’ defense that he believed constituted ineffective assistance of counsel. Gray said that the record showed that defense counsel was not prepared because he had not developed a theory of defense and did not understand how to introduce the character evidence. Gray stated that the transcript showed that Luk-ens had not been adequately prepared to testify. Gray also testified that the cross-examination of A.V. was not competent, noting that the diary presented several opportunities for impeaching A.V. Gray concluded that a reasonably competent attorney would have won the case.

The postconviction court granted Lukens a new trial, finding that Lukens was denied the right to submit character evidence and was denied his right to the effective assistance of counsel and consequently had been denied the right to a fair trial. The State appeals.

ISSUES

1. Is there sufficient evidence to support the postconviction court's findings and conclusion that respondent was denied a fair trial?

2. Did the prosecutor’s remarks during closing argument constitute reversible error?

ANALYSIS

I.

A. On appeal from a grant of postcon-viction relief this court determines whether the evidence is sufficient to support the postconviction court’s findings. Herme v. State, 384 N.W.2d 205, 207 (Minn.Ct.App.1986), pet. for rev. denied, (Minn. May 22, 1986). In its extended findings the post-conviction court judge found that the trial judge had precluded Lukens from “calling any character witnesses under the Rules of Evidence, Rules 404 and 608.” The post-conviction court judge concluded that this was prejudicial error.

The trial court judge did not rule that the character evidence was inadmissible under rule 404 but only noted that:

there is the option for the defendant in all cases to bring in character witnesses to bring out evidence of a particular trait of his character which would contradict the likelihood of his having committed this crime. * * * When the crime charged * * * is a sex crime involving a younger person, I’m not sure just what kind of character evidence would be permitted, but it would not be evidence of truthfulness, that’s for sure, * * *.

The postconviction court’s characterization of the trial court’s ruling on the admissibility of character witness testimony is without any support in the trial record. The postconviction court’s finding on this issue cannot be used to sustain granting a new trial.

B. The other finding made by the post-conviction court judge to support its grant of a new trial was that Lukens was denied effective assistance of counsel. The court specifically pointed to defense counsel’s failure to prepare Lukens’ testimony and to adequately cross-examine A.V.

When determining whether to grant a new trial because a defendant was denied effective assistance of counsel, postconviction courts and appellate courts must apply a two-part test. That test requires that a defendant affirmatively prove:

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Related

Ramon v. State
416 N.W.2d 739 (Court of Appeals of Minnesota, 1987)

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Bluebook (online)
400 N.W.2d 794, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lukens-v-state-minnctapp-1987.